Thursday, August 9, 2012

George Zimmerman and the Right to Violence (Part Three)

This is part three of a series. Parts one and two are available here and here. A final, complete version with citations will be made available on SSRN.The Under-Prosecution of Assault
Beyond the jurisprudence of self-defense and the second amendment, expediency has also played a role in our nation’s attitude toward violent crime. Our legal system has long ignored its most common violation by treating most assault cases as “private” matters. In the early years of industrialization, cities grew too fast for courts to keep up with rising crime rates, and non-aggravated assaults proved the easiest offenses to disregard. In New York, conviction rates fell drastically in the first half of the nineteenth century, while dismissals mounted. Assault cases were increasingly violent. Between 1810 and 1840, for example, the mention of a weapon in indictment records quadrupled.

By 1840, cases of serious violence rarely resulted in justice for the victim or punishment for the perpetrator. The court records of nineteenth-century New York contain countless cases of violence gone unpunished, some horrific, others humdrum. What they demonstrate is that the use of force has long been tolerated in American law.

The latest data shows that in almost two hundred years relatively little has changed. Most violence does not even make it into the justice system in the first place. A majority of violent crime simply goes unreported, let alone punished. 53 percent of simple assaults, which themselves make up about 63 percent of violent crimes, go unreported. Other crimes yield similar statistics. Only 51 percent of violent crime overall is reported to the police. Moreover, police involvement is hardly a guarantee of justice. Three-fourths of domestic violence cases, for example, are never prosecuted because of uncooperative victims.

On what ideological grounds did Americans justify such a blithe treatment of violent assaults? Treatise writer Joel Bishop argued 150 years ago that physical violence strengthened the national character. In the event of war, fisticuffs and brawling would ensure that the country’s citizens could hold their own in a conflict: “[T]he path of human improvement has been macadamized with bones and wet with blood. The strong trample down and tread out the feeble . . . while the conflict, between those who survive, strengthens their bodies and minds, and the acquired vigor passes down to succeeding generations.” In other words, American self-preservation depended on protecting the sanctity of the right to brawl.

An ardent abolitionist, Bishop no doubt viewed the razing of the South as proof of violence’s purifying virtues. On miniature battlefields in America’s streets, homes, and taverns, smaller conflicts would accomplish the same goal. Today, Bishop’s Darwinian rhetoric sounds crude and outdated. Yet today’s often-indifferent handling of violent crime is an outgrowth of trends that he and other legal commentators of the era helped legitimize. As a nation, we continue to regard violence with the sort of quasi-sacred reverence usually reserved for full-fledged “rights” like the right to liberty.

Many obstacles stand in the way of change. Our overburdened legal institutions have more urgent priorities. Prison beds are expensive, and with mandatory jail time required for many crimes, states have little incentive to toughen up on assaults. Owing in large part to mass incarceration, our criminal justice system is in crisis, which makes the idea of more punishment difficult to swallow.

If we want to bring down our levels of violent crime, it’s time to engage alternatives to incarceration: bonds for good behavior, mandated anger management therapy, mediation. If gone unchecked, even petty violence can quickly escalate into a situation with horrific consequences. One scholar used FBI statistics to show a close relationship between murder and aggravated assault numbers. I suspect that future study will find similar patterns in non-aggravated assault. The author of that same report writes: “Assault can be regarded as a failed homicide.”